The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION
DEMARCO ARMSTEAD,
Plaintiff, : Case No. 2:19-cv-4857
v. Judge Sarah D. Morrison
Magistrate Judge Kimberly A. Jolson
SHERIFF DALLAS BALDWIN, et al., :
Defendants.
OPINION AND ORDER
This matter is before the Court on a Motion to Dismiss filed by Defendants NaphCare,
Inc. (“NaphCare”), Amanda Lyons, Cara Stefanko, and Deanna Jones. (ECF No. 53.) Plaintiff
filed a Response (ECF No. 72), and Defendants filed a Reply (ECF No. 83). This matter is now
ripe for consideration.
I. BACKGROUND
On November 4, 2019, Plaintiff Demarco Armstead filed a pro se Complaint asserting
various medical claims against Defendants NaphCare, Amanda Lyons, Cara Stefanko, and
Deanna Jones. (Compl. ECF No. 1-2.) Since filing his Complaint, Mr. Armstead has submitted
hundreds of documents to this Court, which the Court considers to be part of the pleadings. See
Brown v. Matauszak, 415 F. App’x 608, 613 (6th Cir. 2011). Mr. Armstead has also made
several amendments to his Complaint, many of which have been permitted by the Court. (ECF
Nos. 46, 116, 168, 190.) One such amendment is the addition of Sandra Kane as a defendant,
whom Mr. Armstead had previously sued as a Jane Doe. (ECF No. 168, at 18.) Because Ms.
Kane is in a similar posture to Ms. Lyons, Ms. Stefanko and Ms. Jones, the Court assumes that
Defendants’ Motion to Dismiss applies equally to Ms. Kane. These four individuals will be
referred to collectively as the “Individual Defendants.”
Mr. Armstead has been detained at Franklin County Correctional Center (“FCCC”) since
March 16, 2019. (Compl., ECF No. 1-2, at 1.) FCCC contracts with a private company,
NaphCare, to provide medical care for its inmates. Ms. Lyons, Ms. Stefanko, and Ms. Jones are
NaphCare employees, (id.), and Ms. Kane appears to be as well. All are nurses at FCCC. Ms.
Lyons is the Assistant Health Services Administrator. (Pl. Resp. to Mot. to Dismiss, at 4, ECF
No. 72.)
In his Complaint, Mr. Armstead identifies four areas in which he believes NaphCare has
not provided him adequate care or sufficiently accommodated his health issues. The first is the
administration of his HIV medication (the “HIV claim”). (ECF No. 1-2, at 1.) The Court detailed
the facts of this claim in a previous order (the “February Order”) and will not further detail them.
(See ECF No. 116.) But in short, Mr. Armstead alleges that NaphCare’s employees have
inconsistently administered his HIV medication. (ECF No. 116, at 4–5.)
Second, Mr. Armstead alleges that NaphCare employees inadequately cared for a skin
condition that he developed (the “skin condition claim”). (ECF No. 72, at 3.) Specifically, he
alleges that Ms. Stefanko and Ms. Jones misdiagnosed his condition as a fungal infection and
that they provided him with ineffective and harmful medications. (Id.) Mr. Armstead also alleges
that NaphCare has refused to provide him with medical soap, even though he is allergic to the
regular FCCC soap and is unable to purchase the medicated soap himself. (Id. at 7.)
Third, Mr. Armstead alleges that NaphCare has not provided him medication for his post-
traumatic stress disorder (“PTSD”) (the “PTSD claim”). (ECF No. 1-2, at 1.) Fourth, he alleges
that NaphCare has not accommodated his chronic pain stemming from bullets lodged in his body
(the “chronic pain claim”). (Id.)
On December 10, 2019, Mr. Armstead pleaded guilty in the Court of Common Pleas of
Franklin County to Attempted Felonious Assault; however, he has notified the trial judge that he
intends to withdraw his guilty plea. State of Ohio v. Armstead, 19-CR-1437 (Ct. of Common
Pleas of Franklin Cty., Ohio).
II. STANDARD OF REVIEW
Federal Rule of Civil Procedure 8(a) requires a plaintiff to plead each claim with
sufficient specificity to “give the defendant fair notice of what the . . . claim is and the grounds
upon which it rests.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (alteration in original)
(internal quotations omitted). A complaint that falls short of the Rule 8(a) standard may be
dismissed if it fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6).
To survive a motion to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face. A claim has
facial plausibility when the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for the misconduct
alleged. The plausibility standard is not akin to a probability requirement, but it
asks for more than a sheer possibility that a defendant has acted unlawfully.
Where a complaint pleads facts that are merely consistent with a defendant’s
liability, it stops short of the line between possibility and plausibility of
entitlement to relief.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal citations and quotations omitted). The
complaint need not contain detailed factual allegations, but it must include more than labels,
conclusions, and formulaic recitations of the elements of a cause of action. See Directv, Inc. v.
Treesh, 487 F.3d 471, 476 (6th Cir. 2007). “Threadbare recitals of the elements of a cause of
action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citing
Twombly, 550 U.S. at 555).
On a motion to dismiss, the district court generally must look only to the pleadings, or
else the motion is converted to a motion for summary judgment. Fed. R. Civ. P. 12(d). But
documents filed by a pro se plaintiff after the complaint will be considered “as part of the
pleadings.” Brown, 415 F. App’x at 613 (internal quotation marks omitted). A pro se plaintiff’s
pleadings are held to less stringent standards than those drafted by lawyers. Id.
III. ANALYSIS
To begin with, the Court can dispose of a few of Defendants’ arguments without detailed
analysis. Defendants argue that Mr. Armstead has not satisfied the requirements of a particular
provision of Ohio law (Section 2969.26(A) of the Ohio Revised Code), but this argument is
inapt. Mr. Armstead has brought federal claims in federal court. Ohio law has no relevance here.
Defendants also make various arguments that the Court has rejected in its February Order and
will not revisit. The Court instead focuses on NaphCare’s argument that Mr. Armstead’s Eighth
Amendment claims should be dismissed because he has not pleaded an applicable custom,
policy, or practice of NaphCare and on the Individual Defendants’ claim that dismissal is
warranted because Mr. Armstead has not asserted facts demonstrating their individual liability.
The claims that Defendants seek to dismiss are Eighth Amendment claims brought
pursuant to § 1983. The Court previously discussed the requirements for proving an Eighth
Amendment claim in its February Order and will not retread that same ground. (See ECF No.
116, at 9–10.) A § 1983 claim cannot be premised on vicarious liability. Pembaur v. City of
Cincinnati, 475 U.S. 469, 479 (1986). In the case of a supervisor, a plaintiff must, at a minimum,
show that the supervisor “implicitly authorized, approved or knowingly acquiesced in the
unconstitutional conduct of the offending subordinate.” Bellamy v. Bradley, 729 F.2d 416, 421
(6th Cir. 1984). Regarding the Individual Defendants’ liability, Mr. Armstead must identify
sufficient facts to establish a plausible claim that each of them acted with “deliberate
indifference.”
An entity cannot be held vicariously liable either. See Monell v. Dep’t of Soc. Servs. of
N.Y., 436 U.S. 658, 694 (1978). Rather, in order to prove liability, a plaintiff must prove that it
was the entity’s policy or custom that caused the constitutional injury. Id. This requirement exists
in order “to distinguish acts of the municipality from acts of employees of the municipality, and
thereby make clear that municipal liability . . . is limited to actions for which the municipality is
actually responsible.” Pembaur, 475 U.S. at 480. The same is true for a government contractor.
Johnson v. Karnes, 398 F.3d 868, 877 (6th Cir. 2005). Thus, in order for NaphCare to be liable,
it must be the case that a NaphCare policy or custom was the “moving force” behind a
deprivation of Mr. Armstead’s constitutional rights. Parsons v. Caruso, 491 F. App’x 597, 609
(6th Cir. 2012).
The Court now addresses the liability of NaphCare and the Individual Defendants in the
context of each of Mr. Armstead’s four medical claims—the HIV claim, the skin condition
claim, the PTSD claim, and the chronic pain claim.
A. HIV Claim
As was detailed in the Court’s February Order, Mr. Armstead alleges that NaphCare has
failed to administer his HIV medication every day. For example, Mr. Armstead alleges a
“[f]ailure by Naphcare . . . to maintain life sustaining medication” on various dates. (ECF No. 29,
at 2.) A fair implication from this statement is one of a custom of doing so. Cf. Parsons, 491 F.
App’x at 609–10 (describing custom of how medications are ordered as potential basis for
liability). Moreover, among the cases that Mr. Armstead cites in support of his claims is Monell.
(ECF No. 23, at 28.) The Court construes this as part of an attempt to plead the existence of a
custom or policy. This is sufficient to survive a motion to dismiss.
Turning to the Individual Defendants, Mr. Armstead alleges that Amanda Lyons is
responsible for ordering and maintaining the prison’s medications. (ECF No. 72, at 4.) Lyons’s
alleged failure to maintain Mr. Armstead’s HIV medication in stock is sufficient to allege a claim
of deliberate indifference.
Mr. Armstead also alleges that Sandra Kane has failed to administer his medication on
various occasions. (ECF No. 144, at 1.) An allegation of a medical professional’s failure to
administer HIV medication as prescribed is sufficient to allege a claim of deliberate indifference.
Mr. Armstead makes no allegations against Ms. Stefanko or Ms. Jones in the context of
his HIV claim.
B. Skin Condition Claim
Mr. Armstead faults Ms. Stefanko and Ms. Jones for inadequately treating his skin
condition. However, the facts that Mr. Armstead alleges do not rise to the level of deliberate
indifference. Rather, taking the facts as true, Mr. Armstead alleges nothing more than
negligence. For example, he alleges that Ms. Stefanko and Ms. Jones misdiagnosed his skin
condition and provided him with incorrect medication. (ECF No. 72, at 3.) At most this pleads a
claim for medical malpractice. But “[m]edical malpractice does not become a constitutional
violation merely because the victim is a prisoner.” Estelle v. Gamble, 429 U.S. 97, 106 (1976).
Mr. Armstead makes no allegation that Ms. Stefanko or Ms. Jones knew of and disregarded a
substantial risk to his health. Thus, his allegations fall short of pleading an Eighth Amendment
claim.
Mr. Armstead also alleges that NaphCare has refused to provide him with medicated
soap unless he is able to purchase it. (ECF No. 72, at 7.) A fair inference from this allegation is
that this refusal is a matter of NaphCare custom. Mr. Armstead also attaches to his Complaint
multiple sick call requests regarding his skin condition. (See, e.g., ECF No. 83-2.1) These
requests indicate that NaphCare was on notice of Mr. Armstead’s skin condition but still refused
to provide him with medicated soap. These allegations are sufficient to establish a deliberate
indifference claim against NaphCare.
Mr. Armstead makes no allegations against Ms. Lyons or Ms. Kane in the context of his
skin condition claim.
C. PTSD Claim
Mr. Armstead’s PTSD claim consists of a bare allegation without specifying the details of
the alleged medicinal deprivation, including the who, when, or why. This bare allegation is not
enough to survive a motion to dismiss.
D. Chronic Pain Claim
Mr. Armstead makes general allegations about his chronic pain and Defendants’ “failure
to accommodate” his pain. However, he has not specified what accommodation he specifically
requested, how Defendants failed to accommodate him, or who specifically refused to provide
these accommodations. Nor does Mr. Armstead specifically support the contention that this
alleged failure to accommodate constitutes deliberate indifference or explain whether this
asserted failure to accommodate is due to a NaphCare policy.
1 These sick call requests were originally attached to Mr. Armstead’s Complaint. (ECF No. 23-3.) The
Court cites to the more legible copies that Defendants have provided.
E. Retaliation Claim
Mr. Armstead has also moved to amend his Complaint to add a retaliation claim against
NaphCare for failing to pay his dermatological bill. (ECF Nos. 188, 188-3.) However, as
explained above, a § 1983 claim can only be asserted against NaphCare based on a NaphCare
custom, policy, or practice. This includes a retaliation claim. See Johnson v. City of Wakefield,
483 F. App’x 256, 258 (6th Cir. 2012). There is no allegation in the proposed amendment, or in
any of the materials submitted by Mr. Armstead, that NaphCare’s alleged failure to pay the bill is
the result of a retaliatory custom, policy, or practice. The Motion for Leave to Amend is
DENIED IN PART.2
F. Claim Summary
In sum, Mr. Armstead has pleaded a valid claim for deliberate indifference on his HIV
claim against NaphCare, Ms. Lyons, and Ms. Kane, as well as his skin condition claim against
NaphCare. Only these claims against these defendants are sufficiently well-pleaded to survive a
motion to dismiss.
III. CONCLUSION
Based on the foregoing, the Court GRANTS IN PART AND DENIES IN PART
Defendants’ Motion to Dismiss. Because the Court has decided Defendants’ Motion to Dismiss,
Plaintiff’s Motion to Delay/Deny Ruling on the Motion to Dismiss (ECF No. 96) is DENIED as
moot. Plaintiff’s Motion for Leave to Amend (ECF No. 188) is DENIED IN PART.
IT IS SO ORDERED.
/s/ Sarah D. Morrison
SARAH D. MORRISON
UNITED STATES DISTRICT JUDGE
2 Doc No. 188 is a Motion for Leave to Amend to add two separate claims, one relating to NaphCare and
one relating to FCCC deputies. The Court dealt with the claim relating to the FCCC deputies in a prior order. (ECF
No. 190.)